Civil legal contract with an employee (sample). Civil law contract with an employee (sample)

Many people are looking for a part-time job, but not part-time, because it requires you to work 4 hours a day. Therefore, many are drawn up under civil law contracts. Let's look at the features and nuances of its compilation and operation.

Features of the conclusion of a civil law contract

It should be said right away that such an agreement can be concluded both between individuals (for example, for the provision of consulting services), and between an individual entrepreneur, a legal entity and individual for certain types of work. In any case, the contract is drawn up for a certain period and is considered temporary.

The main advantage for a legal entity when applying for a GPA is in a more simplified employment procedure. So, for example, under this agreement, it is not necessary to enroll an employee in the state, to make social payments, which minimizes the processing of accounting and personnel documents. In addition, all relations under a civil law contract are regulated within the framework of the Civil Code of the Russian Federation (for more details, see Article 420).

To important advantages For the employer, you can also include:

• If an employee loses his tools while performing a task, they are damaged, the employer is not responsible for this.
• There is no need to spend money on creating and maintaining a workplace, which minimizes expenses.
• No need to make various deductions - to the Social Insurance Fund, pension fund, pay personal income tax.

All these nuances do not need to be specified when drawing up a civil law contract. In addition, there is no need to make entries in work book. By the way, there is such an opportunity for employment only with the registration of the GPA.

In all other cases, the employer is obliged to draw up a work book, make an entry in it, and deal with the execution of other personnel documents for the employee.

But there are also disadvantages:

• There is no way to control the progress of the work that the executive spends on order fulfillment.
• If the contractor is not an individual entrepreneur and does not pay taxes, then a fine may be imposed on him.

It is also worth noting about the disadvantages and advantages for the executor of the order. The advantages include:

• The cost of performing the work usually exceeds the wages of the company's employees.
• The customer does not have the ability to control the work, does not "stand over the soul."
• You do not need to follow the work schedule set by the company.

But there are also disadvantages. These include: lack of vacations, social guarantees.

In what cases is a civil law contract concluded?

GPA is often used by organizations to disguise real labor relations with their employees, as this allows them not to pay taxes and other deductions. But we must remember that such a practice will eventually lead to fines and administrative liability, since it is not legal. And if between the organization and the individual entrepreneur there are long-term labor Relations according to the GPA, then over time they can be re-qualified into an employment contract, which has its own “consequences”, for example, the need to equip a workplace, payment of personal income tax and other deductions.

AT this case labor relations will be regulated not by the Civil Code of the Russian Federation, but by the Labor Code of the Russian Federation, which will lead to the need to provide vacation pay, pay wages at least twice a month.

At the same time, the executor of the order can, through the court, achieve recognition of such relations as labor relations, as a result of which the employer will be obliged to pay him compensation for violation of rights. And the organization itself will be subject to claims from the controlling services in the amount of up to 100,000 rubles for legal entities and about 10,000 for individual entrepreneurs.

But this does not mean that it is not necessary to conclude contracts of a civil law nature. They just need to comply with conditions such as:

• The actions of the performer should not be included in labor obligations, that is, he does not have to perform them on a regular basis.
• The work must be one-time.
• The document must include the scope of work.

The main types of GPA - what are the contracts?

The Civil Code provides for several types of such a document. Yes, civil legal contract may be:

• Designed to perform a specific type of work. Its main feature can be called the mandatory provision of an act of work performed, which must be signed by the employer.
• Signed to provide certain types of services. For example, veterinary, legal, consulting, etc. After rendering, the contractor receives a certain amount, and the contract is considered fulfilled.
• It is issued for the implementation of complex services. For example, an employee hired under a contract draws up and concludes transactions, receiving a percentage from them.
• Contract for the provision of agency services. For example, an employee performs any transactions on behalf of his employer, and receives payment for this. In this case, the responsibility for the concluded transaction lies with the employer.

At the same time, none of the concluded agreements falls under the scope of the Labor Code of the Russian Federation and is regulated exclusively by the Civil Code of the Russian Federation. That is why the employer does not have the right to regulate the actions of the employer, to monitor his working time, since in this case the result is important.

Document structure - we analyze all the nuances

A civil law contract with an employee does not have an established form, therefore, most often it is drawn up in an arbitrary form. The main thing is that such a document contains the following information:

It is also worth entering other conditions, if any. For example, you can enter the grounds for the removal of liability from the parties in case of violation of the conditions that are included in the contract. Most often, this includes circumstances beyond the control of the parties. For example, these are disasters, natural disasters etc. the details of the parties are additionally affixed and their signatures are put.

The nuances of concluding a civil law contract

The contract must be concluded in two copies, one of which remains with the employer, and the second with the employee. The preparation of such a document should be carried out by employees of the personnel department, after which it is registered with the accounting department or the personnel department. If the document is drawn up by an individual entrepreneur, then he himself, as an individual, should take care of the issues of registration.

Payment is made to the account of the contractor, which is indicated in the document after the completion of work, agreed contracts.

After the conclusion of the contract must be stored in the archives of the organization for at least five years, along with other documents. The only caveat is that it cannot be stored together with employment contracts that are accepted by the company’s staff, especially since the storage period for such documents is 75 years.

Termination of the contract - step by step

To terminate the GPA, it is enough to submit an application addressed to the employer or you need to draw up a separate agreement, which will specify the new deadlines for the end of the document. Most often, the form of the organization is used for this.

The document must specify the grounds that led to the termination, list the papers that confirm the delivery of work, for example, an act. In this case, it is necessary to prescribe that the parties have no claims.

The difference between the GPA and the employment contract

Let's take a closer look at the differences between these two types of contracts. First of all, we are talking about the fact that they are regulated different codes- Civil and Labor. But there are also other fundamental differences, including:

In contact with

Along with the Labor Code of the Russian Federation, relations between individuals and / or legal entities related to the implementation labor activity, may be based on a different basis - civil law. In particular, a number of contracts formalizing the implementation of various types of labor activity are provided for by the Civil Code of the Russian Federation.

Among the civil law contracts regulating relations associated with the implementation labor functions, we can include the agreements provided for by the Civil Code of the Russian Federation:
- contracts;
- on the implementation of research, development and technological work;
- paid provision services;
- transportation;
- transport expedition;
- assignments;
- commissions;
- agency services;
- trust management of property.

Civil law contract with an employee (with an individual) sample (DOWNLOAD) (Word format)

Contractual relations in the labor sphere are also provided for by separate federal laws. Among these are the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" (hereinafter - Law N 208-FZ). Among other issues, it regulates labor relations in terms of management joint stock company on the basis of an agreement on the management of a joint-stock company.

Note that the very possibility of concluding this type of contract follows from Art. 103 of the Civil Code of the Russian Federation, providing that by decision general meeting shareholders, the powers of the executive body of the company may be transferred under an agreement to another commercial organization or individual entrepreneur (manager).
Thus, labor duties can be performed on the basis of an employment contract provided for by the Labor Code of the Russian Federation, as well as on the basis of civil law contracts provided for by the Civil Code of the Russian Federation and / or other federal laws.
A reasonable question arises: what is the difference between the performance of labor duties based on one or another type of contract?

Let us consider some features of civil law contracts and compare them with relations arising on the basis of labor legislation.
The party "hired" for the performance of a certain type of work or services on the basis of a civil law contract can be both an individual and a legal entity. Labor relations on the basis of labor legislation suggest that the following conditions are the subject of contractual relations:
1) living labor;
2) the performance of labor duties under an employment contract cannot be entrusted to another person.
A completely different situation develops when the terms of a civil law contract are fulfilled, the subject of which is the result of labor.
Let us explain the above with a simple example.

Example 1.3.
Suppose that Salyut LLC is going to improve the adjacent territory, namely, to plant a lawn and ornamental plants. It is quite clear that in the future these green spaces will require systematic care.
Salyut LLC can realize its intentions in several ways.

Firstly, within the framework of labor relations, this organization can employ its employees landscape designer and / or a gardener, whose duties will include planting and caring for green spaces. In practice, this means that these employees will be on workplace in the enterprise working time(for example, from 09-00 to 18-00) and perform the duties assigned to them, as provided for by labor legislation. In other words, these employees are fully subject to all requirements, rights and obligations arising from labor legislation.

Secondly, the implementation of plans for the creation and maintenance of green spaces is possible through the conclusion of a civil law contract, for example, a work contract or a mixed contract, which has elements of several types of contracts. Such an agreement can be concluded between Salyut LLC, on the one hand, and an individual or legal entity- on the other hand.

Suppose that Salyut LLC has entered into a contract for the specified types of work with an individual - V.P. Petrov. In this case, the subject of the contract will be the creation and maintenance in the proper form landscape design and green spaces in a certain area adjacent to the office of Salyut LLC. When fulfilling contractual obligations, the contractor (V.P. Petrov) has the right to independently choose the optimal time for work, and the fulfillment of contractual obligations will be assessed by the result. Cooperating with Salyut LLC on the basis of a civil law contract, V.P. Petrov is not included in organizational structure this organization. In this case, the norms of labor legislation will not apply to him.

We noted earlier that the fulfillment of contractual obligations within the framework of civil law relations can be entrusted to another person. In the example we are considering, this may look, in particular, as follows: Salyut LLC enters into a contract with a legal entity - Park LLC. The subject of the agreement will be the creation and maintenance of landscape design and green spaces in the proper form. It is quite possible to assume that LLC "Park" attracts specialists to carry out the specified activities on the basis of civil law contracts, since it does not have the appropriate employees in its staff. Ultimately, a situation is possible in which the contractual obligations of Park LLC will be performed by V.I. Ivanov is an individual cooperating with Park LLC on the basis of a civil law contract.

According to such an agreement, the contractor undertakes to fulfill a certain order, and the employer to pay for what has been done.

There are several types of civil law contract:

• Agency. It involves the execution of a certain legal transaction by an agent on his own behalf, but at the expense of the principal. Payment is made after the submission of a report on the work done. The transaction entered into by the agent leads to the emergence of obligations from the principal.
• in a row. According to it, one party must do a certain job and hand over the result to the other. At the end, a special act is signed. The contract is divided into construction, design and survey and household.
• For the implementation of technological, research or development work.
• Orders. Under this contract, one party instructs the other to perform a legal service. For this, the trustee shall be paid a fee set by the parties.
• Paid services.
• Commissions. It provides for the transaction by the commission agent on his own behalf (he also has rights and obligations) on behalf of the committent (pays for the work). A commission is assigned for the completed task.

In a civil law contract, all relations are regulated by the Civil Code, and not by the Labor Code. Therefore, it is not worth counting on the payment of sick leave, paid vacation and timely payment of salaries.

However, benefits can be obtained through the courts if such an agreement regulated labor relations.

Civil law contract with an employee for the provision of services

It is concluded if there is a need for a short-term or one-time service (work).

To legitimize the relationship, the customer and the contractor sign this agreement. At the same time, the employee is not required to comply with a certain schedule, and he may not obey the requirements of the employer.

The parties at the conclusion of the contract are determined with the terms of implementation, payment procedure, price and content of the task.

The completed order is handed over to the employer with the help of the act of acceptance of services. The performer receives money for the completed task.

Civil law contract with an employee form

The agreement is written in two copies: one for each party.

It must contain the following details:

• Name
• Terms and amount of payment
• Place and date of the contract
• Bank details of the contractor and customer
• Signatures
• Terms of work
• The procedure for accepting a completed task
• Subject of the contract
• Entrepreneur Seal

It does not specify: bonuses, allowances, tariff rate or official salary, hours of work and position of the performer. Also, no entry is made in the workbook.

Violations

If a civil law contract for the same type of task is concluded with the same person several times, then this is already a sign of an employment agreement.

This can lead to an administrative fine:

• For the organization - 30 thousand rubles
• For an individual entrepreneur - 1.5 thousand rubles

In addition, the activities of the company may be suspended for a month.

Sample

Below you can download a sample of such an agreement. It is important for the employer not to call things by “their” names in the agreement. If you write in it instead of the contractor - "employee", and the customer - "employer", then the one who performs the task in the event of difficulties has the right to go to court with a request to reclassify the contract into an employment contract.

It is important for the employer not to try to demand that the other party comply with the internal labor regulations. This also entails the aforementioned difficulties.

Accounting

Insurance contributions to the FFOMS and PFR are charged on the amounts of such an agreement. Income tax is also paid. Contributions are not transferred to the FSS, therefore the performer does not have social benefits.

The contract may indicate the obligation of the customer to pay a premium for social insurance at work against accidents and occupational diseases. Then a copy of the agreement must be sent to the FSS.

Payroll and personnel records for employees hired in this way are not kept. Therefore, a civil law contract is more profitable and more convenient for an entrepreneur.

Summary

Pros and cons for the employer

For the employer, the following advantages of a civil law contract should be noted:

• You can pay less tax and get certain benefits.
• The employee does not need to allocate a place, social package and free food.
• If the contractor uses any personal items to complete the task, then their price does not need to be reimbursed.
• You don't have to pay health or social insurance.
• The remuneration does not depend on the salary of other employees.

But there are also a number of disadvantages:

• If the performer is not individual entrepreneur(does not pay taxes), then an administrative fine may be imposed on him or the customer.
• You cannot control the amount of time an employee spends on a task.
• One inaccuracy in the contract and it can be regarded as labor.

Disadvantages and advantages for the performer

Pros:

• No need to follow the company's internal work schedule
• Sometimes the salary for work exceeds the salary of other employees
• No pressure from the customer
• No need to participate in company events

Minuses:

• There are no social guarantees
• Specificity of salary payment
• No vacation

Sometimes a civil law contract can be an excellent alternative to a labor contract.

It is only important not to allow similarities between these two agreements, otherwise difficulties may arise.

Video on the topic: "Civil law contract"

Often, when hiring a new employee, the organization concludes an employment contract with him, this format of relations is used in most cases and it is in full compliance with labor legislation. However, this is not always applicable for the employer, because according to employment contract The employer is obliged to fulfill a whole range of obligations, namely:

• Timely payment wages(from twice a month)
• Providing the employee with paid leave with the preservation of the workplace
• Payment of travel expenses and retention of the employee's place
• Preservation of a workplace for an employee during training or combining work with training
• Providing an employee with a severance pay and a preferential right to remain working in the organization upon termination of the employment contract
• Payment sick leave and safety for the employee of the workplace in case of temporary disability
• Reimbursement of expenses when an employee uses personal property

The civil law contract will the best option if the employee is needed to perform one-time work, or there is no opportunity to create additional jobs in the office, the presence of which is mandatory under the employment contract. At the same time, you should carefully consider the choice of the method of registering an employee, because if you make a mistake in choosing, quite serious problems can arise. Negative consequences. Namely, if a civil law contract was concluded where a labor contract was to be concluded, then by a court decision it can be reclassified into an employment contract, which will entail the payment of wages by the employer, the inclusion of the employee in the state, payment for moral damage caused to the employee and legal costs, while the employer will also have to accrue additional UST in terms of the FSS and penalties accumulated over the period of non-payment of tax.

The main forms of a civil law contract:

• Personnel provision agreement - outstaffing

What type of contract should be chosen if it is necessary to choose the method of formalizing labor relations with personnel: an employment contract or a civil law contract. To do right choice between these types of contracts, consider the pros and cons of each contract.

Civil contract

Benefits for the employer

• Since the result is important for the employee when performing work under a civil law contract, such an employee provides himself the necessary conditions labor. The employee himself determines the place of work, he plans the time spent to perform the work. Unless otherwise provided by the contract, the employee uses his materials to perform the work.
• UST is not charged in terms of tax credited to the FSS of the Russian Federation (2.9% of the tax base for UST). Clause 3, Article 238 of the Tax Code of the Russian Federation
• There is no need to provide the employee with guarantees under the Labor Code of the Russian Federation (i.e., there is no need to pay severance pay upon dismissal, pay wages at least 2 times a month, provide guarantees for family workers, guarantees for vacations, additional days off, pay overtime, etc.)
• Insurance premiums for compulsory social insurance against industrial accidents and occupational diseases are not accrued for the amount of remuneration, except for the case when the employer, when concluding a civil law contract with an individual, has determined his obligation as an insured to pay insurance premiums for compulsory social insurance against accidents. cases at work and occupational diseases (clause 1, article 5 of the Federal Law of July 24, 1998 No. 125-FZ, clause 3 of the Accrual Rules ..., approved by Decree of the Government of the Russian Federation of March 2, 2000 No. 184).
• Unlike wages under an employment contract, remuneration under a civil law contract is usually made at the end of work in accordance with the price specified in the contract itself, and not twice a month.

Cons for the employer

• Due to the fact that when performing work under a civil law contract, the result of the work is important, there is no provision for any regulation of such work. That is, such an employee is not obliged to obey the internal labor regulations of the organization, respectively, he cannot be held liable for non-compliance with the labor regulations in force in the organization.
• The possibility of recognizing in court a civil law contract as a labor contract.
• If the person with whom the civil law contract is concluded is not registered as an individual entrepreneur, then he may be held liable for illegal implementation entrepreneurial activity. The employee, in this case, may insist that the relationship was in fact of an employment nature. This leads to judicial review cases and the possible recognition of a civil contract as a labor contract. Accordingly, the employee can be paid for the time of forced absenteeism and compensated for non-pecuniary damage. Article 171 of the Criminal Code of the Russian Federation

Civil law contract with an individual

Benefits for the employer

• UST is not charged in terms of tax credited to the FSS (4.0% of the UST tax base).

Cons for the employer

• The possibility of recognizing in court a civil law contract as an employment contract, if the court establishes that such a contract actually regulates labor relations between an employee and an employer. This entails the inclusion of the employee in the state, the spread of labor legislation, guarantees to him, including upon dismissal. If the termination of the contract is disputed and the contract is recognized as labor, then the employee will need to pay forced absenteeism and, possibly, moral damage. In addition, the employer will incur legal costs. Article 11 of the Labor Code of the Russian Federation

Civil law contract with an individual entrepreneur

Benefits for the employer

• There is no provision for any regulation of the work of a citizen performing work under a civil law contract.
• An employee working under a civil law contract provides himself with the necessary working conditions. He himself determines the place of work, he himself calculates the time costs for the performance of work. Unless otherwise provided by the contract, the employee uses his material to perform work.
• For failure to fulfill its obligations, the contractor bears the risk of accidental loss or accidental damage to the result of the work performed before it is accepted by the customer.
• Insurance premiums for the amount of remuneration are not charged, except for the case when the employer, when concluding a civil law contract with an individual, determined his obligation as an insurant to pay insurance premiums for compulsory social insurance.

Cons for the employer

• Due to the fact that when performing work under a civil law contract, the result of the work is important, there is no provision for any regulation of such work. That is, such an employee is not obliged to obey the internal labor regulations of the organization, respectively, he cannot be held liable for non-compliance with the internal labor regulations.

Labor contract

Benefits for the employer

• The employee is obliged to comply with the internal work schedule. For non-compliance, the employer has the right to impose disciplinary action including layoffs.

Cons for the employer

• The employer is obliged to timely pay the employee wages, the monthly amount of which for the employee who has worked the norm of working hours for this period and fulfilled the norms of labor (labor duties) cannot be lower than the established federal law the minimum wage.
• The need to apply for a job means the inclusion of an employee in the state. If staffing does not provide for the presence of a particular position or limits the number of employees, then it will be necessary to change the staffing table. To do this, it will need to be re-agreed with the head and the representative body of employees (if there is one in the organization).
• Providing the employee with guarantees provided for by labor legislation. Among the guarantees, one should name the payment of severance pay upon dismissal, the payment of wages at least 2 times a month, guarantees for family workers, guarantees for vacations, additional days off, overtime pay, etc.
• The employee must be provided with working conditions that allow him to perform the work for which he was hired, and he must not be hindered in the performance of his duties.
• The need to maintain personnel documentation, submit reports to the relevant authorities (FSS of the Russian Federation, Pension Fund of the Russian Federation, MHIF of the Russian Federation, statistical authorities).
• Insurance premiums are charged on the wages (income) of employees accrued for all reasons (including freelance, seasonal, temporary, part-time workers).